The State Vs. Pannu and others, 3 LNJ (2014) 229

Case No: Death Reference No. 120 of 2005

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mohammad Ali,Mr. M.A. Mannan Mahon,Mr. Md. Azizul Haq,Mr. Tajul Islam,Mr. M. Amirul Islam,Mr. Md. Serajul Islam,Ms. Sultana Nasrin,,

Citation: 3 LNJ (2014) 229

Case Year: 2014

Appellant: The State

Respondent: Pannu and Others

Subject: Criminal Trail,

Delivery Date: 2011-08-02


HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Syed Md. Ziaul Karim, J.
            And
Abdur Rob, J.
 
 
Judgment on
28, 31.07.2011 and 01, 02.08.2011
 
  The State,
Versus
1. Pannu
2.  Kabil,
3. Hur Babu
4.  Shafiqul Islam
5.  Shahajan
6.  Picture alias Shahidul Islam
7.  Rabiul alias Rabul
….Condemned prisoners
(In Death Reference No. 120 of 2005.)
With
Shajahan
...Convict-Appellant
Versus.
The State,
...Respondent
(In Criminal Appeal No. 3338 of 2005)
With
Rabiul Islam alias Rabul
...Convict-Appellant.
Versus
The State
...Respondent.
(In Criminal Appeal No. 4052 of 2004)
      With
The State
...Appellant.
Versus
1. Ramjan
2.  Shafi
3. Malek,
4. Habibur Rahman Hobi,
5. Hafizur Rahman Helal,
6. Abdul Khaleque,
7. Hafizul,
...Respondents.
(In Government Criminal Appeal No. 22 of 2005)
With
Md. Shahajan
...Convict-Appellant.
Versus
The State,
...Respondent.
(In Jail Appeal No. 952 of 2005)
With
Rabiul Islam alias Rabul
...Convict-Appellant.
Versus
The State,
...Respondent.
(In Jail Appeal No. 1057 of 2005)
 
 
Code of Criminal Procedure (V of 1898)
Section 161
Evidence Act (I of 1872)
Section 3
At the earliest point of time the Pws. 4, 6, 7, 11 and 12 did not disclose the material facts either to the Investigating Officer or to the locals which makes the prosecution case shaky. It is well settled that when an eye witness to the occurrence that took place at the morning does not disclose the names of the assailants he allegedly recognized and other material facts to the witnesses who came to the scene immediately after the occurrence was over or at the earliest opportunity and there is no justifiable reason for nondiscloser of the material facts, belated discloser of material facts renders their evidence/ testimony doubtful. In such a case the Court should reasonably infer that the story of recognition of the assailants was a subsequent embellishment.... (88)
 
Code of Criminal Procedure (V of 1898)
Section 161
The occurrence took place on 02-09-2001. P.Ws. 3, 4 were examined by the I.O. on 15-12-2001 and 17-11-2001 respectively, both P.Ws. 6-7 were examined by the I.O. on 30-11-2001 and P.W. 11 was examined after 3/4 months  from the occurrence. So inordinate delay in examining the important prosecution witnesses cast a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration.... (90)
 
Criminal Trail
In a criminal case it is significant that the prosecution must prove the case beyond all reasonable doubt particularly the place of occurrence. P.Ws. 2, 3, 4, 7, 11 categorically stated that the deceased Nurul Islam Bachchu was chased by the accused from Kalam’s house towards Abdul Rouf’s house, where he was shot dead. But P.W. 6 stated that he was chased from Jail road then to Kalam’s house, lastly to the Rouf’s house. It is the definite case of the prosecution according to P.W. 1 that he was chased from Muftibari to Hasanfoez Lane, then near to the house of Rouf. Therefore, on an assessment of the evidence of aforesaid alleged eye witnesses, we find that the presence of those witnesses at the place of occurrence or about the time is doubtful from their testimony that either P.W.6 or P.Ws. 2-4, 7, 11 or F.I.R. or the evidence of P.W. 1 be believed or that none of them be believed. On the face of these inconsistencies it is difficult to rely upon their testimony.... (92)
 
Evidence Act (I of 1872)
Sections 3 and 8
It is pertinent to point out that the learned Judge convicted one set of accused and acquitted other set over the selfsame of evidence on record. There is no mismatch or distinction between the acquitted accused and the convicts so far as the ocular testimony is concern. The eye witnesses having been disbelieved against one set of accused should not be believed against other set without any independent corroboration.... (93)
 
Golam Azam Vs. The State, 6 MLR (AD) 240; Shahabuddin Ahmed Vs. The State 53 DLR 464; Khoka Vs. Teh State 5 BLC (AD) 86; Abdul Latif alias Gudu and 6 others Vs. The State 44 DLR 492; Nurul Islam and others Vs. The State 45 DLR 142; State Vs. Azharul 3 BLC 382; Gopal Rajgor and others Vs. State 9 BLD 455; Mujaffar Ali and others Vs. The State PLD 1964(W.P) Lahore 32; Bangladesh (State) Vs. Paran Chandra Barioi 1986 BCR (AD) 225; Nijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and others 2004 Criminal 413 Supreme Court of India; State Vs. Al Hasib Bin Jamal alias Hasib and five others 59 DLR 653; Abul Kalam Azad alias Ripon (Md) Vs. State 58 DLR (AD) 26; The State Vs. Azizur Rahman alias Habib 20 BLD 487; Narain Vs. State of Madhya Pradesh 2004 Criminal 344 Supreme Court of India; Moslemuddin Vs. Ahmed Ali alias Akku and others, 7 BCR (AD) 85; State Vs. Azizul Haq,12 BLT 199; Gopal Rajgor and others Vs. State 42 DLR 446;Anaddi alias Ayenuddin and others Vs. State 6 BLC 311; Mati Miah Vs. State 44 DLR 554; State Vs. Basirullah 16 DLR 189; Nowser Molla and others Vs. The State 11 BLD 295; Harun Sheik Vs. The State 8 BLD 425 and Mafiz Uddin Vs. The State 31 DLR 16; Asadur Rahman alias Asad Vs. The State 15 DLR 290; Abdur Rouf Moral and others Vs. The State 7 BLT 310; Nowabul Alam and others Vs. The State 15 BLD (AD) 55; Sanwar Hossain Vs. State, 45 DLR 489; Bangladesh Vs. Paran Chandra Baroi, 1986 BCR (AD) 225; Muslimuddin and others Vs. State, 38 DLR (AD) 311; Haji Md. Jamal Uddin Hossain and others Vs. State, 1994 BLD 33; State Vs. Mokbul Hossain, 1986 BLD 34= 37 DLR 156, Nurul Haque Vs. State, 1982 BCR 332, Moinullah and another Vs. State, 1988 BLD 100= 40 DLR 443 and State Vs. Babul Hossain, 52 DLR 400 ref.
 
Mr. M.A. Mannan Mahon, D.A.G. with
Mr. Md. Moniruzzaman, A.A.G.
Mr. Md. Mahbub Ul Alam,A.A.G.
Mr. Md. Osman Goni, A.A.G.
...For the State

Mr. Md. Azizul Haq,
...For State defence.

Mr. Khandaker Mahbub Hossain, Senior Advocate with’
Mr. Mohammad Ali, Advocate,
Mr.  Tajul Islam, Advocate, with
Mr. Md. Shirajul Islam, Advocate,
...For the condemned prisoners (In Death Reference No. 120 of 2005)

With
Mr. Tajul Islam, Advocate,
….For the convict appellant. (In Criminal Appeal No. 3338 of 2005)

With
Mr. M. Amirul Islam, Senior Advocate with
Ms. Sultana Nasrin, Advocate,
...For the convict-appellant (In Criminal Appeal No. 4052 of 2004)

With
Mr. Md. Serajul Islam, Advocate
...For the respondent nos. 1-6 (In Government Criminal Appeal No. 22 of 2005)

With
Mr. Tajul Islam, Advocate,
...For the convict-appellant (In Jail Appeal No. 952 of 2005)

With
Mr. M. Amirul Islam, Senior Advocate with
Ms. Sultana Nasrin, Advocate,
...For the convict-appellant (In Jail Appeal No. 1057 of 2005)

Death Reference No. 120 of 2005 with
Criminal Appeal No. 3338 of 2005 with
Criminal Appeal No. 4052 of 2004 with
Government Criminal Appeal No. 22 of 2005 with
Jail Appeal No. 952 of 2005 with
Jail Appeal No. 1057 of 2005.
 
JUDGMENT
Syed Md. Ziaul Karim, J:
 
This Death Reference under Section 374 of the Code of Criminal Procedure has been made by the learned Judge of Druto Bichar Tribunal, Rajshahi, for confirmation of death sentence of contemned-prisoners.
 
By the above appeals the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 03-08-2005 passed by learned Judge of Druto Bichar Tribunal, Rajshahi, in Druto Bichar Tribunal Case no. 24 of 2005 convicting the appellants under Sections 302, 34 of the Penal Code and sentencing each of them to death by hanging. By the same judgment rest nine accused were acquitted from the charge. Against the order of acquittal of above seven accused-respondents government presented the above appeal.
 
The Death Reference and all these appeals having arisen out of the common judgment. These have been heard together and are being disposed of by this judgment.
 
The essence of the prosecution case unfurled at trial are that on 02-09-2001 at 8.45 a.m. while Nurul Islam Bachchu since deceased on the way to home from his shop reached near Muftibari, then the accused namely Hafizur Rahman alias Helal, Shafiqul Islam son of Sarowar Hossain, Kabil, Ramjan, Pannu, Abdul Khalek, Abdul Malek, Pikture alias Shahidul Islam, Asadul, Rabiul Islam alias Rabul, Shahjahan, Shafi son of Abdul Jalil, Hafijul, Hur Babu and Najmul being armed with short-gun, pipe-gun, Shutter-gun and Iron- rod suddenly emerged and chased him towards Hasan Foiz Lane wherein accused Helal ordered to fire then accused Ramjan opened fire beneath his knee causing injury and on screaming he rushed near the house of Advocate Abdur Rouf but accused Shafiq son of Sarowar, Kabil, Abdul Malek and Najmul caught hold of him, accused Helal, Abdul Malek, Asadul, Picture caught hold of his left hand while accused Rabiul and Shajahan right hand. Then accused Hur Babu, Kabil and Pannu opened fire to him by gun causing injuries at the chest and right hand respectively. Accused Malek and Shafi son of Abdul Jalil opened fire at his neck. The locals namely Nasidul Haq alias Kota (P.W.7), Ashraful Reja (P.W. 9), Manu Mia (P.W.10), Chunnu, (P.W. 12), Abdus Sattar(P.W.15) and others rushed to the spot and sensing their presence accused departed from there. The victim was taken to hospital by rickshaw in critical condition wherein the attending doctor declared him death. Having had heard the incident P.W.1 Md. Harunur Rashid brother of deceased rushed to the scene and learnt the occurrence from the witnesses. Reportedly the accused are local terrorists and drug traders. He and his brother since deceased used to resist the criminal acts of the accused before occurrence. So the accused being revengeful threatened them with dire consequence. The same was reported to local Police Station wherein G.D.E. no.35 dated 01-08-2001 was recorded. The reasons behind the murder might be the sequel to the conflict between them. Later on at 19.10 hours prosecution was launched by lodging a first information report by P.W.1 Harunur Rashid as informant which was recorded as Kushtia Sadar Police Station Case no. 04 dated 02-09-2001 corresponding to G.R. no.224 of 2001 under sections 147,148, 149, 302, 114 and 120-M of the Penal Code.
 
The Police after investigation submitted charge sheet under Sections 114, 302, 34,120-M of the Penal Code accusing 16 accused including the condemned prisoners.
 
Then, the accused were called upon to answer the charge under Sections 302, 34 and 302, 109 of the Penal Code to which the accused on dock pleaded not guilty and claimed to be tried.
 
In course of trial the prosecution in all, produced 19 witnesses, of them examined 14 witnesses and 5 witnesses were tendered by the prosecution and defence declined to cross -examine them.
 
The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It is divulged in defence that the deceased had no known source of income and involved in dacoity and murder cases. So, he might be killed by unknown assailants but due to internal feud the accused were falsely implicated out of vengence by the rivals.
After closure of the prosecution case the accused on dock were examined under Section 342 of the Code of Criminal Procedure again they repeated their innocence but led no evidence in defence.
After trial the learned Judge of the Court below convicted the accused as aforesaid.
 
The learned Deputy Attorney General  appearing for the state supports the reference. He adds that in this case P.Ws. 4, 6, 7, 11 and 12 are the eye witnesses to the occurrence and they categorically corroborated the prosecution case as alleged by the informant. He adds that the first information report was lodged within a reasonable time and delay of 10 hours in lodging the first information report is not an inordinate delay. Moreso, the same was satisfactorily explained. In support of his contentions he refers the case of Golam Azam Vs. The State 6 MLR (AD)240 held:
 
“When the occurrence took place at 5:30 P.M. and the brother of the deceased who was busy with the dead body in the Hospital during the night lodged F.I.R. in the next morning. The explanation of delay as given being satisfactory is not fatal for the prosecution. Similarly the delay in examining some witness by the Investigating officer does not cast any adverse reflection. The conviction and sentence being based on consistent evidence of the eye witnesses are held to have been perfectly justified warranting no interference.”
 
He further submits that evidence of all, prosecution witnesses are corroborative with each other, and conviction and sentence can be based on the sole evidence of only one eye witness. In support of his contentions he refers the case of Milon alias Shahabuddin Ahmed Vs.  The State 53 DLR 464 held:
 
“Non-examination of nearby people not fatal to the prosecution case when there are eye-witnesses of the occurrence.”
 
He further refers the case of Khoka Vs. The State 5 BLC(AD) 86 held:
 
“The Division Bench like the trial Court believed the only eye-witness. Believing only eye-witness is legally permissible and conviction can be based on the sole evidence of only one eye-witness.”
 
The learned Counsel lastly submits that the order of conviction and sentence passed on evidence record which calls for no interference by this Court.
 
In respect of Govt. Criminal appeal no.22 of 2005 the learned Deputy Attorney General submits that there are consistent evidence against the acquitted accused inasmuchas all the prosecution witnesses categorically stated that the accused Ramjan, Shafi, Malek, Habibur Rahman, Hafijur Rahman, Abdul Khalek and Hafijul along with other convicted accused chased the deceased and subsequently opened fire to him to death. The evidence against the acquitted accused and the convicted accused are identical. So the order of acquittal passed in favour of them cannot be sustained.
 
The learned Counsels appearing for the condemned prisoners and the appellants by their common contentions seek to impeach the impugned judgment and order of conviction and sentence on the sixth fold arguments:
 
Firstly
 
The occurrence took place on 02-09-2001 at 8.45 a.m. and soon-after the occurrence the informant Harunur Rashid brother of the deceased rushed to the scene, met with the witnesses and Police personnel, particularly his brother P.W. 4, Advocate Md.Giasuddin Miah but the F.I.R. was lodged after long lapse of 10 hours i.e. at 19.10 hours without any satisfactory explanation of delay which cast a serious doubt upon the prosecution story. In support of their contentions they refer the case of Abdul Latif alias Gudu and 6 others Vs. The State 44 DLR 492 held:
 
“ FIR- delay-The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story.” 
 
Secondly         
 
The informant P.W. 1 Md. Harunur Rashid categorically stated in the first information report that he found Manu Mia(P.W.10), Md. Ashraful Reja( P.W. 9), Md. Chunnu Mia,(P.W. 12), Nasidul Haq Kata(P.W. 7), Abdus Sattar Rentu (P.W. 15),  were present at the place of occurrence from whom he heard the occurrence to the effect, that accused Habib opened fire to the deceased at the middle of his chest but in his evidence he as P.W.1 stated that Kabil committed such occurrence which is absolutely a departure from the prosecution case. Moreso, the witnesses namely P.Ws. 4, 6 and 11 who claimed as eye witnesses, not the FIR named witnesses. So their evidence cannot be relied for convicting the accused. In support of their contentions they refer the case of Nurul Islam and others Vs. The State 45 DLR 142 held:
 
“Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy.”
 
On identical point  they refer the case of State Vs. Azharul 3 BLC 382 held:
 
The first Information Report is the foundation of the prosecution case and if the foundation is removed the whole prosecution case shall fall. It appears that subsequent deviation from the First Information Report story and the embellishment of the same by the eye-witnesses namely, PWs. 1-4 at the trial makes the credibility of the witnesses doubtful.
 
It is now well settled that if important witnesses are examined by the I.O. long after the occurrence that diminishes the credibility of the evidence adduced by those witnesses at the trial. From that point of view the evidence of P.Ws. 2 to 4 lost their credibility as the I.O. started investigation of the case on 11-09-1991 but their statements were recorded under Section 161, Cr.P.C. on 01-12-1991.”
 
In the case of Gopal Rajgor and others Vs. State  9 BLD- 455 held:
 
“ First Information Report – Effect of substantial departure from the FIR story- FIR can legitimately be used for assessment of the prosecution case- Any departure or deviation from the main story disclosed at the earliest recorded version may be looked upon with great suspicion.”
 
In the Case of Mujaffar Ali and others Vs. The State PLD 1964(W.P) Lahore 32 held:
 
“Witness- Names not  figuring in F.I.R. but subsequently mentioned in supplementary statement-Testimony, held, suspicious and excluded from consideration.”
 
Thirdly
 
P.Ws 6 and 7 who claimed to be eye witnesses and soon-after the occurrence they happened at the spot but they were examined by the investigating officer after long lapse of three months i.e. on 30-11-2001 which diminishes the credibility of their evidence. In support of their contentions they refer the case of Bangladesh (State) Vs. Paran Chandra Baroi 1986 BCR (AD)225 held:
 
The long delay in examining the material witnesses cast a doubt on the whole prosecution case.”
 
In the case of Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and Ors. 2004 Criminal 413 Supreme Court of India held:-
 
“ The delay in questioning the witnesses by investigating officer is a serious mistake on the part of the prosecution. So the witnesses are not reliable.”
 
In the case of State Vs. Al Hasib Bin Jamal alias Hasib and five others 59 DLR 653 held:
 
Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the pros-ecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration.”
 
Fourthly         
 
There are serious contradictions of the statements of the witnesses to the Investigating Officer and testimony before the Court which makes their evidence unreliable. In support of their submissions they refer the case of Abul Kalam Azad alias Ripon (Md) Vs. State 58 DLR(AD) 26 held:
 
When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted.”
 
In the case of The State vs. Azizur Rahman alias Habib 20 BLD-487 held:
“ Omission of vital fact by the witnesses recorded by the investigating officer that he saw the condemned prisoner and his wife in the night of occurrence of going inside the hut and that they slept inside the hut in the night following the morning of which condemned prisoner’s wife was found dead is reliable.
The witnesses having not stated at the earliest point of time the said evidence cannot be relied upon in Court.”
 
In the case of Narain Vs. State of Madhya Pradesh 2004 Criminal 344 Supreme Court of India held:
Conviction under-Informant was not reliable witness-Eye-witnesses had given varying versions- Genesis and place of incident not established by cogent and credible evidence by prosecution –Held-No reason to take different view only against the appellant of conviction –Therefore, his conviction also set aside.”
 
Fifthly
 
P.Ws. 2-4, 6, 7, 11 categorically stated that the occurrence took place from the house of Kalam towards the house of Advocate Abdur Rouf whereas P.W. 12 said that occurrence took place from Hasanfoez Lane towards the house of Advocate Abdur Rouf but the definite prosecution case according to P.W. 1 was that occurrence took place from Muftibari towards the house of Abdur Rouf, such different versions cast a doubt upon the place of occurrence aswellas manner of occurrence. In support of their contentions they refer the case of Moslemuddin Vs. Ahmed Ali alias Akku and ors.  7 BCR(AD) 85 held:
 
“ On scrutiny of the first information report and the evidence of P.Ws. 1,2,3,4 and 6 it appears that there are discrep-ancies asto the place of occurrence as well as injuries. The contradictions and the discrepancies being highly serous, the appeal is dismissed”.
 
In the case of State Vs. Azizul Haq 12 BLT 199 held:
 
Place of occurrence- on an assessment of the evidence of these witnesses, we find that the presence of these witnesses at the place of occurrence at or about the time is doubtful from their testimony that either P.W.1 or P.W.2 or P.W. 6 or P.W.7 be believed or that none of them be believed. On the face of these inconsistencies it is difficult to rely upon their testimony.”
 
In the case of Gopal Rajgor and ors. Vs. State 42 DLR-446 held:
 
Defence version- Manner of occurrence- prosecution having failed to prove their version of the manner of occurrence, the defence version became probable and the appellants were acquitted of the charges.”
 
Sixthly
 
The most important witnesses namely Kalam, Advocate Abdur Rouf, Shimul who rushed to the scene soon-after the occurrence and S.I. Lutfor Rahman who at the first instance held investigation and visited the place of occurrence, prepared sketch map and index were not examined by the prosecution and most interested witnesses were examined which makes the prosecution case unreliable.
In support of their contentions they refer the case of Anaddi alias Ayenuddin and ors. Vs. State 6 BLC-311 held:
 
Non- examination of relevant witnesses as mentioned in the first information report as well as independent witnesses, particularly some of neighbours, raises a presumption against the prosecution to the effect that had they been examined in the case they would not have supported the prosecution case and the benefit of this defect will go to the accused persons.”
 
In the case of Mati Miah Vs. State 44 DLR 554 held:
“Interested witness- Conviction cannot be based on the uncorroborated testimony of the informant who is a police officer and is vitally interested in the result of the case.”
 
The learned Counsels lastly submit that in view of the aforesaid principles enunciated in different decisions the prosecution measur-ably failed to prove the charge against the condemned prisoners. Therefore, the conviction and sentence awarded to them are not sustainable in the eye of law. So the same is liable to be set aside.
 
In order to appreciate their submissions we have gone through the record and given our anxious considerations to their submissions.
 
Now the question calls for consideration, is, whether the impugned judgment and order of conviction and sentence can be sustained in the eye of law.
 
It is undisputed that the slain Nurul Islam Bachchu was lynched on 02-09-2001 at morning.
 
Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
P.W. 1, Md. Harunur Rashid, brother of the deceased and Journalist by profession.  He deposed that on 02-09-2001 at 9.00 a.m. he was returning from the house of his nephew Abdur Rashid and while reached near Kushtia Sadar  hospital  mor he heard the whishpering of some people about death of Nurul Islam Bachchu by gun-shot. He found the dead body lying at the hospital, and his elder brother Giasuddin, nephew Shimul, younger brother Chunnu and Babu neighbour Nader Alil and Nasidul Haq Kota, Kota, Abdus Sattar, Manu Miah along with 20/25 others were in the hospital who told that the deceased was returning from his shop and at 8.45 a.m. while he reached near Muftibari then accused Helal, Shafi son of Sarwar, Kabil, Ramjan, Pannu, Khalek, Malek, Picture, Asadul, Rabiul, Shajahan, Shafi son of Abdul Jalil, Hafijur, Hur Babu, Najmul being armed with short-gun, rifle, pipe-gun, iron-rod etc. chased Bachchu and at Hasan Foiz road accused Helal ordered to open fire then Ramjan opened fire by gun beneath his left knee causing bleeding injury, while he reached near the house of Advocate Abdur Rouf then shafi, Kabil, Pannu, Malek, Najmul, caught hold of him. Accused Helal, Malek, Asadul, Picture caught hold his left hand while Rabiul, Shajahan right hand. Then Hurbabu, Kabil, Pannu, Malek and Safi opened fire by gun at his person causing bleeding injuries. The accused were the local drug traders and he along with slain Bachchu used to resist the criminal acts of the accused for which they threatened them with dire consequence and to that effect he lodged a G.D.E. no. 35 dated 01-08-2001 which he proved it as Exhbt.1. The Investigating Officer, S.I. Lutfor Rahman did not prepare sketch map and index properly. He lodged the First Information Report which he proved it as Exhbt. 8 and his signature on it as Exhbt. 8/1.  He identified accused Helal, Abdul Khalek, Shajahan, Asadul and Hafizur on dock.
 
In cross-examination he stated that he lodged First Information Report after hearing the occurrence and he was not the eye witness of the occurrence and his full brothers namely Giasuddin, Babu, Chunnu and nephews Tagor and Shimul were the witnesses in this case. He was an accused in a murder case from which he was acquitted subsequently. He denied the suggestion that he did not state in the ejahar that witnesses namely Gias, Simul, Chunnu, Parul, Nader Ali, Nasidul Haq Kota, A. Sattar, Manu Mia narrated the occurrence to him and deposing falsely.
 
P.W. 2, Md. Akkas Ali, a resident of Shimulia. He deposed that prior to the occurrence he heard Hur Babu, Picture, Rabiul, Malek, Khalek, Shafi son of Abdul Jalil Mistry and 5/6 others were whispering about the murder of Bachchu, on the day of occurrence he went to hospital and found Advocate Giasuddin Mamun, Tagar, Nasidul Haq Kota, Chunnu, Alal, Manu, Sattar, Rentu, Nader Ali Kota to whom he stated about the prior occurrence. In the morning he heard that at 8.45 a.m. Helal, Ramjan, Kabil, Shafi son of Sarwar, Shajahan, Malek, Khalek, Hurbabu, Picture, Rabiul, Hafijur, Shafi son of Abdul Jalil chased Bachchu towards Hasan Foiz Lane and near the house of Kalam opened fire causing injuries beneath the left knee. They surrounded the victim in front of the house of Advocate Abdur Rouf. Then at the order of Helal Pannu, Safi, Hur Babu, Malek, Kabil opened fire by gun causing injuries upon the person of victim Bachchu. He identified the accused Helal, Asadul, Hafijul, Shajahan, Khalek on dock.
 
In cross-examination he denied that he did not state to I.O. about the conspiracy prior to the occurrence, and specific allegations about the accused namely Helal, Ramjan, Kabil, Safi, son of Sarwar, Shajahan, Malek, Khaleq, Hur Babu, Picture, Rabiul, Hafizur, Safi son of A. Jalil.
 
P.W. 3 Nader Ali, a resident of Ershad Nager and Rickshaw Puller by profession. He deposed that at 8.45 a.m. he found accused Helal, Pannu, Kabil, Shafi son of Sarwar, Ramjan, Malek, Khalek, Hurbabu, Picture, Rabiul, Hafizul, Shajahan, Shafi son of Abdul Jalil were chasing victim Bachchu. Then beside the house of Kalam accused Ramjan opened fire at victim’s left knee. He heard the occurrence from witnesses namely Safi, Alal, Nasidul Haq Kota, Chunnu, Tagor, Giasuddin. He carried the victim Bachchu in the hospital wherein the attending doctor declared him death. He heard that accused Malek, Kabil, Pannu and Shafi surrounded the victim Bachchu, while accused Helal, Picture, Malek, caught hold of his left hand and Rabiul, Shajahan right hand. Then accused Helal ordered to kill, then accused Pannu, Shafi, Malek, Hurbabu, Kabil opened fire by gun. He also heard from Akkas and Rahim about the conspiracy of murder of Bachchu.
 
In cross–examination he denied that he did not state to I.O. that Ramjan opened fire to victim Bachchu, carried him to hospital by his rickshaw, specific allegations against the accused and deposing falsely.
 
P.W. 4 Md. Giasuddin Miah is an Advocate by profession and elder brother of the deceased. He deposed that on 02-09-2001 at 8.45 a.m. accused Helal, Malek, Khalek, Shafi son of Sarwar, Kabil, Ramjan, Pannu, Safi son of Abdul Jalil, Shajahan, Hafijul, Hurbabu, Picture, Rabiul and 5/6 others being armed with deadly weapon chased victim Bachchu. Then accused Ramjan opened fire at his left knee near the house of Kalam. Thereafter accused Khalek, Malek, Kabil, Shafi son of Sarwar, Pannu surrounded Bachchu near the house of Advocate Abdur Rouf. Accused Rabiul, Shajahan, caught hold of his right hand while Helal and Picture left hand. Then at the order of accused Helal, accused Pannu, Shafi, Malek, Hurbabu, Kabil opened fire at his person. He and his son begged for his life. The accused threatened them by weapons. He witnessed the occurrence. Prior to 6/7 days of the occurrence the accused Habib and Helal hatched a conspiracy for murder of Bachchu. Witness Jalal, Kota, Chunnu, Shimul, Nasidul Haq Kota, also heard and witnessed the occurrence. Police seized one blood stained lungi of Hafijul and blood stained earth from the spot and prepared seizure list. He identified the accused Helal, Khalek, Shajahan, Hafizul on dock.
 
In cross-examination he denied that at the relevant time of occurrence he was inside the bathroom for thirty minutes. He further stated that his right hand is paralysed. Deceased Bachchu was survived by one wife and two daughters. He denied the suggestion that the real facts were known to wife of Bachchu. He resisted her not to lodge first information report.
 
He denied the suggestion that deceased Bachchu borrowed money from many persons and due to such enmity unknown assailants might have killed him and he was deposing falsely.
 
P.W. 5 Mustafa Shamsujjaman a resident of Kalisankarpur.He deposed that on 02-09-2001 at 8.45 a.m. Bachch was killed and S.I. Atiar Rahman held inquest at 12.10 in Kushtia General hospital in his presence. He signed in the inquest report (Exhbts. 11, ).
 
In cross-examination he stated that at the time of inquest 8/10 persons were present and first information report was not lodged prior to inquest.
 
P.W. 6, Md. Alal, a resident of Ramfal. He deposed that on 02-09-2001 at 8.45 a.m. Bachchu was killed. The accused Helal, Ramjan, Kabil, Shafi son of Sarwar, Pannu, Shafi son of Abdul Jalil, Shahjahan, Malek, Khalek, Hurbabu, Picture, Rabiul, Hafijul and 5/6 others chased Nurul Islam Bachchu from Jail road to Hasanfoez Lane while he reached in front of the house of Kalam then accused Ramjan opened fire by gun beneath his left knee. Then the accused Malek, Khalek, Pannu, Shafi son Sarwar and Kabil surrounded him in front of the house of Abdur Rouf. Accused Helal and Picture, caught hold of his left hand while Rabiul and Hafijul right hand. Accused Pannu, Shafi, Malek, Hur Babu, Kabil opened fire by pipe-gun at his person. Then, the accused departed from the scene. Witnesses Guasuddin, Shimul, Tagar, Chunnu, Rentu, Nasidul Haq Kota, and another Kota, Manu and others were present there.  Bachchu was taken to the hospital where the attending doctor declared him death.  At 11/11-30 witnesses Akkas and Rahim came to the hospital and narrated the conspiracy for killing Bachchu. He witnessed the occurrence. He identified the accused Helal, Shajahan, Khalek, Hafijul on dock.
 
In cross-examination he denied that he did not state to I.O. that he, Giasuddin, Shimul, Tagar, Chunnu, Rentu, Nasidul Haq Kota and another Kota, Manu were present at the place of occurrence, Akkas and Rahim told them about the conspiracy of murder of Bachchu. He stated that wife and mother of Bachchu were alive but he stated nothing to them. He denied the suggestion that he was not present at the place of occurrence and deposing falsely.
 
P.W. 7 Nasidul Haq Kota, a resident of Pearatala. He deposed that on 02-09-2001 at 8.45 a.m. he went to the Hasanfoez road for collecting outstanding money and found that accused Helal, Malek, Khalek,Pannu, Kabil, Ramjan, Shafi son of Sarwar, Shajahan, Shafi son of Abdul Jalil, Hafijul, Pikture, Hurbabu, Rabiul and 5/6 others were chasing Bachchu towards east while he reached near the house of Kalam, then accused Ramjan opened fire by gun at his left knee causing bleeding injury. Accused Malek, Khalek, Pannu, Kabil, Shafi son of Sarwar, surrounded Bachchu, then accused Helal and Pikture caught hold of his left hand while Shajahan and Rabiul right hand. At the order of accused Helal accused Pannu, Shafi, Hurbabu, Malek, Kabil opened fire by gun at his person causing bleeding injuries. Witnesses Kota, Giasuddin, Rentu, Alal, Shimul, Tagor and Chunnu happened at the spot. They carried Bachchu to the hospital wherein the attending doctor declared him dead. They heard from Akkas and Rahim about the conspiracy of murder of Bachchu.
 
In cross-examination he denied that he did not state to I.O. about the presence of witnesses at the scene and went to hospital, witnesses Akkas and Rahim told about the conspiracy of murder. He stated that one day after the occurrence he went to the Police for recording the statement. He denied the suggestion that he was deposing falsely.
 
P.W.11 Kota, a Rickshaw-van puller by profession and resident of Kushtia. He deposed that at 8.45 a.m. accused Helal, Pikture, Malek, Khalek, Pannu, Kabil, Shafi son of Sarwar, Ramjan, Rabiul, Hafijul, Shajahan, Safi son of Jalil, Hurbabu being armed with weapons were chasing Bachchu towards Hasan Foiz Lane. Ramjan opened fire by gun beneath his left knee in front of Kalam’s house, and accused Malek, Khalek, Pannu, Kabil, Shafi son of Sarwar, surrounded him in front of the house of Advocate Abdur Rouf, Helal and Pikture, caught hold his left hand while Rabiul and Shajahan right hand. At the order of Helal accused Pannu, Safi son of Abdul Jalil, Hurbabu, Kabil opened fire at his person. Advocate Giasuddin, Shimul, Nasedul alias Kota, Alal, Nader Ali, Chunnu carried the victim to hospital wherein the attending doctor declared him dead. Habib and Helal, conspired to kill Bachchu.
 
In cross- examination he denied that he did not state to I.O. about the names of witnesses Nasidul Haq Kota, Alal, Nader Ali and Chunnu, Kabil, Pannu and Malek opened fire, and accused chased Bachchu. In Hospital he stated nothing to Police.
 
P.W. 12 Md. Chunnu Mia a resident of Hasan Foiz lane and elder brother of deceased Bachchu. He deposed that on 02-09-2001 at 8.45 a.m. accused Helal, Ramjan, Shafi son of Sarwar, Kabil, Pannu, Malek, Khalek, Shafi son of Abdul Jalil, Shahjahan, Hurbabu, Pikture, Rabiul, Hafijul and 5/6 others being armed with deadly weapons chased Bachchu fromJail road to Hasanfoez lane wherein he found that Ramjan opened fire with gun at the left knee of victim and accused Malek, Khalek, Shafi son of Sarwar, Kabil, Pannu, surrounded him. Accused Helal, and Pikture, caught hold of his left  hand while Rabiul and Shahjahan right hand, he along with witnesses Giasuddin, Shimul, Tagor, Nader Ali and others approached to save the victim but the accused threatened them. Then, the accused Helal ordered and accused Pannu, Shafi, Malek, Hurbabu and Kabil opened fire by gun causing bleeding injuries upon the person of victim. He and other witnesses carried the victim to Kushtia Sadar hospital wherein the attending doctor declared him dead. He heard from Akkas and Rahim about the conspiracy of murder of victim. He and other witnesses heard and witnessed the occurrence. He identified the accused Helal, Shajahan, Khalek, Hafizur on dock.
 
In cross-examination he stated that after 3/4 months from the date of occurrence he made statement before the Police. He denied about his statement regarding specific allegations against the accused before I.O. He denied the suggestion that he did not witness the occurrence and deposed falsely.
P.W. 13, Dr. Md. Abu Yusuf, deposed that on 02-09-2001 he was attached with Kushtia General hospital as Radiologist and held autopsy of the cadaver of Nurul Islam Bachchu and found the following injuries:
 
1.   One ovale shaped charring perforating injury with lacerated inverted margin at the front of the chest just ½" right lacerated to midline having 1½" diameter with fracture of sternum (point of entry).
2.   One circular lacerated injury at the  back of the upper part of the left side of chest near left scapula with everted margin (point of exit.)
3.   Multiple charring penerating injury at  the right lateral side of chest near right nipple having " diameter. 
4.   Multiple charring penetrating injuries at the back of right fore-arm i.e. wrist.
5.   Charring penetrating injuries at the front of the upper part of the left leg.
 
On dissection:
 
Antemortem blood clot with tissue laceration and congesion were found in the chest cavity. Pillets with cartidges were found in the right side of the chest cavity.
Opinion: In my opinion, the cause of death was due to hemorrage and shock as a result of above mentioned injuries by fire arm weapon which was antemortem and homicidal in nature.
 
He proved the post mortem report and his signature on it as (Exhbts. 12, ).
 
In cross-examination he denied the suggestion that without proper examination he furnished a perfunctory report.
 
P.W. 14, C- Gazi Rahmat Ullah carried the dead body to the morgue of Kushtia General hospital for autopsy.
 
P.W. 17 A.S.I. Md. Sagir Miah, recorded the G.D.E. no. 35 dated 01-08-2001 lodged by Md. Harunur Rashid (Exhbt.13,).
 
In cross- examination he stated that in G.D.E. names of accused Hafizur, Shajahan and Khalek were not mentioned.
 
P.W. 18 S.I. Atiar Rahman deposed that on 02-09-2001 he was attached with Kushtia Police Station and at 12-10 a.m. he held inquest upon the cadaver at the identification of Sattar. He came to know from preliminary investigation that at 8.45 a.m. Habib, Kabil, Shafi, Malek, Pannu, Khalek, Helal, Shafi, Pikture, Hurbabu, Ramjan, Mukti and others killed Bachchu. He proved the inquest report (Exhbts. 11, ). He also seized one short-gun from the house of Habibur Rahman and preparerd seizure list (Exhbts. 14, ).
 
In cross examination he denied the suggestion that being influenced by the informant he mentioned the names of accused in inquest report.
 
P.W. 19 Inspector Abdul Wahab deposed that on 02-09-2001 he was attached with detective branch of Kushtia and took up the investigation. A.S.I. Monjur Alam recorded the case and filled up the F.I.R. (Exhbts. 8, , 15, ). S.I. Lutfor Rahman was entrusted for investigation. He prepared sketch map and index and also arrested two accused, seized alamats and prepared seizure list (Exhbts.16,  and 10,). He also seized Lungi, bulletcaps and blood stained earth ( Mat. I-IV). S.I. Md. Ayub Ali took up the investigation after transfer of S.I. Lutfor Rahman who only visited the place of occurrence. Then on 14-11-2001 he took up the investigation, visited the place of occurrence and found irregularities regarding sketch map and index prepared by former I.O. Then, he prepared sketch map and index (Exhbts. 20, and 21, ). He recorded the statements of the witnesses. After investigation he submitted charge sheet accusing the accused.
 
In cross-examination he stated that he did not mention the house of Kalam in his map. He examined the wife of deceased on 17-11-2001 but did not record her statement. He recorded the statement of Nader on 25-12-2001 who heard that Ramjan opened fire at the left leg of Bachchu beside the house of Advocate Abdur Rouf, he ( Nader) did not state about the injury upon deceased caused by Ramjan beside the house of Kalam. P.W. 2 Akkas did not state to him about the order given by Helal, accused Helal, Pikture, Malek caught hold the left hand of victim while Rabiul and Shajahan right hand. He recorded the statement of P.W.4 Giasuddin on 17-11-2001. He (P.W.4) stated to him that on 02-09-2001 at 8.45 a.m. he went to bathroom for taking bath. He (P.W.4) did not state to him that Ramjan opened fire to Bachchu, heard conspiracy of murder of Bachchu from witnesses Akkas and Rahim. He (P.W.4) did not state to him that Alal, Kota, Chunnu, Shimul, Nasidul Haq Kota witnessed the occurrence. He (P.W.4) stated to S.I. Luthfor Rahman that on 02-09-2001 at 8.45 a.m. he went to bathroom for taking bath. He did not state to S.I.Lutfor Rahman that Alal, Kota, Chunnu, Ashraful Reja, Shimul, Nasidul Haq Kota and others witnessed the occurrence. He recorded the statement of Alal (P.W. 6) on 30-11-2001. He (P.W.6) did not state to him that the accused cordoned Bachchu and taken him to hospital. He recorded the statement of Nasidul Haq Kota (P.W.7) on 30-11-2001. He (P.W.7) did not state to him that Pannu opened fire upon vicim and conspiracy was held at the house of Helal. P.W.11 Kota did not state to him that at 8.45 a.m. he was staying at his house, chased towards hasan Foez Lane from, infront of Kalam’s house, order given by Helal, and Pannu opened fire.  P.W.12 Chunnu did not state to him that Ramjan opened fire to Bachchu at his left knee, accused surrounded him near Rouf’s house, Pannu, Safi, Malek, Hurbabu, Kabil consecutively opened fire, accused departed towards west, he (PW 12) and other witnesses carried the victim to hospital wherein the attending doctor declared him dead, none of the witnesses stated to him (P.W.19) that at the order of Helal, Pannu, Safi, Malek, Hurbabu, Kabil opened fire. He stated that S.I. Lutfor Rahman was already in service but his whereabout was unknown to him. He denied the suggestion that without proper investigation he submitted charge sheet and deposed falsely.
 
These are all of the evidence on record adduced by the prosecution to prove the charge.
 
At the very outset we should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
 
The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
 
The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
 
In maters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
 
There must be clear and unequivocal proof of the corpus delicit.
 
The hypothesis of delinquency should be consistent with all the facts proved.
Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.
 
Admittedly the informant (PW 1) is not the eye witness of the occurrence. He described the names of witnesses namely Manu Mia (P.W. 10), Md. Ashraful (P.W.9), Chunnu (P.W.12), Nasidul Haq Kota(P.W. 7) and Abdus Sattar (P.W. 15) in the first information report who allegedly witnessed the occurrence and he heard the manner of occurrence from them. In first information report he categorically stated that on 02-09-2001 at 8.45a.m. his brother slain Nurul Islam Bachchu while reached near the house of Muftibari, then the accused chased him towards Hasan Foez Lane and near the house of Advocate Abdur Rouf the murder took place. He also categorically narrated the specific allegations of the accused stating along with others that accused Habib opened fire to Bachchu by gun causing bleeding injuries at the middle of the chest but in his testimony before the Court as P.W.1 replaced the name of Habibur Rahman by accused Kabil.  The reasons for such major departure was not explained.
 
It is pertinent to point out that out of five F.I.R.named witnesses, three witnesses namely P.W. 9, 10 and 15 were tendered by the prosecution and none of the witnesses came forward to corroborate the cause of such departure of facts of P.W. 1.
 
In the case of State Vs. Basirullah 16 DLR-189 held:
 
F.I.R. can legitimately be used for assessment of the whole prosecution case in the light of facts and circumstances of the case.
It is true that a first information report cannot be used to contradict any witness other than the informant, but the Court can and should take notice of the earliest recorded statement with regard to the prosecution case in the context of the circumstances which make this particular report of vital impotance in the assessmernt of prosecution evidence.
The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but impertative in the context of the circumstances set out above.”
 
In the case of Nowser Molla and others Vs. The State 11 BLD 295 held:
 
The F.I.R. as earliest recorded version of the prosecution case may be looked into for the purpose of comparing the same with the statement made subsequently during trial by the P.Ws. Any deviation or departure from F.I.R. story make the prosecution story doubtbul and casts serious doubt as to the credibility of the prosecution witnesses. Partial departure creats suspicion as to the truth of prosecution case and total departure from F.I.R. story sometimes warrant exclusion of the prosecution evidence from consideration.”
 
Similar views were taken in the cases of Harun Sheik Vs. The State 8 BLD 425 and Mafiz Uddin Vs. The State 31 DLR 16.  In view of above decisions it is very unsafe to rely on the evidence of PW- 1.
We find that prosecution in all produced 19 witnesses, of them examined 15 witnesses and rest 5 witnesses were tendered by the prosecution and defence declined to cross-examine them. P.W. 1 is the informant but not the eye witness, P.Ws. 2 and 3 are also not the eye witnesses but they heard some facts of occurrence from the eye witnesses. P.Ws. 4,6,7, 11,12 claimed themselves as the eye witnesses to the occurrence and they were examined to corroborate the prosecution case.
 
P.W. 13 is a Physician who held autopsy upon the cadaver. P.W. 14 a constable who carried the dead-body to the morgue for autopsy. P.W. 17 recorded the G.D.E. no. 35 dated 01-08-2001 before the occurrence.  P.W. 18 held inquest and also prepared some seizure lists. P.W. 19 is the investigating officer who submitted charge sheet accusing 16 accused.
 
Therefore, the prosecution case absolutely rest upon the testimony of P.Ws. 4, 6, 7, 11 and 12 the alleged eye witnesses to the occurrence.
 
P.W.4, Md. Giasuddin Mia brother of the deceased andinformant. He is not F.I.R. named witness although he claimed himself that soon-after the occurrence he rushed to the scene and witnessed the occurrence but he stated to I.O. (P.W. 19) that on 02-09-2001 at 8.45 he was inside the bath room for taking bath. In respect of his evidence P.W. 19 stated that he examined him on 17-11-2001, who did not state accused Ramjan opened fire to Bachcu near Kalam’s house and accused cordoned Bachchu, Akkas and Rahim told him about the conspiracy, Alal,Kota, Chunnu, Shimul, Nasidul Haq Kota witnessed the occurrence. It was proved by evidence that at the time of occurrence he was inside the bath room and some important facts were not disclosed to I.O. at the earliest opportunity. After close scrutiny of his evidence the Court below disbelieved it. We also hold the same view.
 
P.W. 6 Md. Alal also claimed himself as an eye witness to the occurrence and narrated the specific allegations against the accused but he stated nothing that at the time of occurrence he rushed to the scene. In respct of his evidence P.W. 19 stated that he examined Alal (P.W. 6) on 30-11-2001 but he did not state to him that the accused cordoned the deceased Bachchu and taken to hospital.
 
P.W. 7 Nasidul Haq Kota is an F.I.R. named witness and claimed himself as eye witness. In respct of his evidence P.W.19 stated that he examined him(P.W. 7) on 30-11-2001. P.W. 7 did not state to him (P.W.19) that accused cordoned the deceased and Pannu opened fire and prior to 6/7 days of the occurrence there was a conspiray for killing the deceased Bachchu.
 
P.W.11 Kota claimed himself as an eye witness but he is not F.I.R. named witness but corroborated the occurrence with specific allegations against the accused. He stated that at the time of occurrence he was staying in his house but there is absolutely no evidence that he happened at the spot at the time of occurrence. He further stated that the I.O. examined him after 3/4 month of the occurrence. In respect of his evidence (P.W. 19) stated that he did not state to him that at 8.45 a.m. the accused chased deceased towards Hasanfoez Lane and the place of death of Bachchu; Pannu opened fire at the order of Helal.
 
P.W. 12, Md. Chunnu Mia brother of the deceased Bachchu. He is an F.I.R. named witness. He claimed himself as an eye witness. He corroborated the occurrence with specific allegations of the accused.  In respect of his evidence I.O. (P.W.19) stated that he (P.W.12) did not state to him that Ramjan opened fire to Bachchu beneath the left knee; all the accused cordoned Bachchu near the house of Rouf, Pannu, Shafi, Malek, Hurbabu and Kabil successively opened fire to Bachchu.
P.W 19 also stated that none of the witnesses stated to him that at the order of Helal, Pannu, Shafi, Malek, Hurbabu, Kabil opened fire to victim.
 
After close scrutiny of their evidence we find that at the earliest point of time those witnesses did not disclose the material facts either to the Investigating Officer or to the locals which makes the prosecution case shaky. It is well settled that when an eye witness to the occurrence that took place at the morning does not disclose the names of the assailants he allegedly recognized and other material facts to the witnesses who came to the scene immediately after the occurrence was over or at the earliest opportunity and there is no justifiable reason for nondiscloser of the material facts, belated discloser of material facts renders their evidence/ testimony doubtful. In such a case the Court should reasonably infer that the story of recognition of the assailants was a subsequent embellishment. With this regard reliance is being placed in the case of Asadur Rahman alias Asad vs. The State 15 DLR 290. Similar view was taken in the case of Abdur Rouf Moral and others Vs. The State 7 BLT 310.
It is also well settled that when an eye witness witnessed the occurrence, accused person departed from the scene and many people assembled at the place of occurrence followed by officials. It is expected that the eye witnesses will name the accused persons not only to their own kith and kin but also to uninvolved persons, including high officials. Belated discloser of the names of the assailants make their evidence doubtful. With this regard reliance is being placed in the case of Nowabul Alam and others Vs. The State 15 BLD (AD) 55. Therefore we hold that their belated discloser of material facts is vulnerable to the credibility and as such the same are incompatible as well as incredible.
Moreso, the occurrence took place on 02-09-2001. P.Ws. 3, 4 were examined by the I.O. on 15-12-2001 and 17-11-2001 respectively, both P.Ws. 6-7 were examined by the I.O. on 30-11-2001 and P.W. 11 was examined after 3/4 months  from the occurrence. So inordinate delay in examining the important prosecution witnesses cast a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration.
 
In the case of Sanwar Hossain vs. State, 45 DLR - 489 it was held inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration. In the case of Bangladesh Vs. Paran Chandra Baroi, 1986 BCR(AD) 225 it was held that the long delay in examining the material witnesses casts a doubt on the whole prosecution case. In the case of Muslimuddin and others Vs. State, 38 DLR(AD)311 evidence of P.W.3 who claimed to have recognised the assailants was not relied upon as her statement, which could have been recorded on the day following the incident, was recorded after 34 days. Same view was taken in the cases of Haji Md. Jamal Uddin Hossian and others vs. State,1994 BLD-33, State Vs. Mokbul Hossain, 1986 BLD 34= 37 DLR 156, Nurul Haque Vs State, 1982 BCR 332, Moinullah and another Vs. State, 1988 BLD 100= 40 DLR 443 and State Vs. Babul Hossain, 52 DLR-400. In view of the above settled principle of law the evidence of P.Ws. 3, 4, 6, 7 and 11 should not be relied upon and the same are to be left out of consideration.
 
In a criminal case it is significant that the prosecution must prove the case beyond all reasonable doubt particularly the place of occurrence. P.Ws. 2, 3, 4, 7, 11 categorically stated that the deceased Nurul Islam Bachchu was chased by the accused from Kalam’s house towards Abdul Rouf’s house, where he was shot dead. But P.W. 6 stated that he was chased from Jail road then to Kalam’s house, lastly to the Rouf’s house. It is the definite case of the prosecution according to P.W. 1 that he was chased from Muftibari to Hasanfoez Lane, then near to the house of Rouf. Therefore, on an assessment of the evidence of aforesaid alleged eye witnesses, we find that the presence of those witnesses at the place of occurrence or about the time is doubtful from their testimony that either P.W.6 or P.Ws. 2-4, 7, 11 or F.I.R. or the evidence of P.W. 1 be believed or that none of them be believed. On the face of these inconsistencies it is difficult to rely upon their testimony. It is pertinent to point out that S.I. Luthfor Rahman, first investigating officer who prepared sketch map (Exhbt. 16), index (Exbht. 18),  showing the place of occurrence alongwith surrounding building, grocery shop etc. are quite different from that of the sketch map (Exhbt.17) and index (Exhbt.19) prepared by subsequent I.O. P.W.19 but surprisingly S.I. Luthfor Rahman was withheld by the prosecution without any explanation. Moreover most vital witnesses namely Abdur Rouf, Kalam, Shimul were not examined by the prosecution. We also find from the evidence on record that Nurul Islam Bachchu was survived by his wife, and two children, host of relatives and well-wishers but the prosecution failed to examine any of them without any proper explanation. So, the legal presumption would be had they been examined, they would not have supported the prosecution case. In the instant case we also find that P.Ws. 4,6,7,11 and 12 deposed as the eye witnesses to the occurrence and P.Ws. 2 and 3 were examined  to corroborate the prosecution case particularly the eye witnesses and P.W. 1 was examined to corroborate his own statements made in the first information report but on close scrutiny of their evidence we find that evidence of all the prosecution witnesses suffer from glaring contradictions inconsistencies and infirmaties. So the same are vulnerable to the credibility and it is very difficulty to believe their testimony. Moreover, it is the definite case of the prosecution that there was an internal feud between the parties and when there is a background of enmity and the witnesses are chance witnesses and not natural witnesses and further natural and independent witness were not produced, it is unsafe to rely on the evidence of chance witnesses to make a nexus between the accused and the crime. So we hold that there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of murder. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.
 
It is pertinent to point out that the learned Judge convicted one set of accused and acquitted other set over the selfsame of evidence on record. There is no mis-match or distinction between the acquitted accused and the convicts so far as the ocular testimony is concern. The eye witnesses having been disbelieved against one set of accused should not be believed against other set without any independent corroboration.
 
Having regard to the facts and the submissions advanced by the learned Deputy Attorney General we have gone through the decisions reported in 6 MLR (AD) 240, 53 DLR-464 and 5 BLC (AD)86 as referred by him. The facts leading to those cases are quite distinguishable to that of the instant case. Therefore, we are unable to accept his submissions. On the contrary the legal pleas taken by the defence and the submissions advanced by the learned Counsels for the defence prevail and appear to have a good deal of force.
 
In the light of discussions made above and the preponderant judicial views emerging out of the  authorities referred to above, we are of the view that the prosecution measurably failed to prove the charge against the condemned prisoners beyond all reasonable doubt.  So, the impugned judgment and order of conviction and sentence suffers from legal infirmities, which calls for interference by this Court. Thus the death reference and Government Criminal Appeal No. 22 of 2005 having no merit fails and all the criminal appeals having merit succeed.
 
In the result:-
(a) The Death reference is rejected. The impugned Judgment and order of conviction and sentence dated 03-08-2005 passed by learned Judge of Druto Bichar Tribunal, Rajshahi in Druto Bichar Tribunal Case no. 24 of 2005, is hereby set aside. The condemned prisoners are acquitted from the charge leveled against them and they be set at libery if not detained in any other case.
(b) All the Criminal appeals are allowed and the appellants are set at liberty if not detained in any other case;
(c) The Government Criminal appeal No. 22 of 2005 is dismissed.

The office is directed to send down the records at once.

Ed.